Citation Nr: 0421202
Decision Date: 08/03/04 Archive Date: 08/09/04
DOCKET NO. 99-17 747 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUES
1. Entitlement to service connection for arthritis.
2. Entitlement to service connection for residuals of a left
leg injury.
3. Whether the appellant has basic eligibility for
Department of Veterans Affairs permanent and total disability
benefits due to non-service-connected disabilities.
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B. P. Tierney, Counsel
INTRODUCTION
The appellant served on active duty from April 7, 1975 to
June 27, 1975. The appellant also had service with the Army
National Guard and the U. S. Army Reserves between 1979 and
1995.
This case is before the Board of Veterans' Appeals (Board) on
appeal of rating decisions from the Department of Veterans
Affairs (VA) Regional Office (RO) in Manila, the Republic of
the Philippines, which denied entitlement to service
connection for arthritis and for residuals of a left leg
injury. The RO also denied legal entitlement to non-service-
connected disability pension benefits. During his September
1999 RO hearing, the appellant withdrew his request for a
Board hearing.
In October 2001, the Board denied the appellant's claims of
entitlement to service connection and for basic eligibility
for permanent and total disability benefits due to non-
service-connected disabilities.
The veteran appealed the Board's decision to the United
States Court of Appeals for Veterans Claims (Court). In
September 2003, the Court vacated the October 2001 Board
decision and remanded in order for the Board to address and
fulfill the amended duty to notify and assist, as set forth
in the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) codified, in pertinent
part, at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002)
as well as the implementing regulations at 38 C.F.R. §§
3.159 (2003).
As explained below, the Board has determined, in compliance
with the September 2003 Court Order, that further action is
required in order to comply with the VA's duty to assist in
the development of the veteran's claim. Accordingly, this
appeal is Remanded to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required.
REMAND
In the September 2003 Order, the Court found that VA had not
complied with 38 U.S.C.A. § 5103(a), as implemented by
§ 3.159(b) because the documents purportedly complying with
the duty notify did not specifically state, under § 5103(a)
and § 3.159(b) what information and evidence the VA would
obtain. Additionally, the notifications did not "request
that the claimant provide any evidence in the claimant's
possession that pertains to the claim." See Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b).
The Court also found that the Board failed to analyze the
veteran's claim under 38 U.S.C.A. § 1521(j) (West 2002) with
regard to the requirement for 90 days of active service dury
a period of war for basic eligibility for permanent and total
disability benefits due to non-service-connected
disabilities. The Board notes that a July 1995 Army National
Guard Retirement Points Statement, Supplemental Detailed
Report, submitted by the veteran does not indicate any period
of active duty during a period war, specifically the Persian
Gulf War, which began August 2, 1990. However, in accord
with the September 2003 Court Order, the RO should confirm
with the Rhode Island National Guard the dates of any
qualifying active duty during the Persian Gulf War period.
The claim is accordingly Remanded for the following action:
1. The AMC/RO should attempt to verify,
through official channels, any period of
qualifying active service during the
Persian Gulf War period. Relevant law and
regulations should be cited.
2. The AMC/RO must review the claims file and
ensure that all notification and development
action required by 38 U.S.C.A. §§ 5102, 5103,
and 5103A (West 2002) are fully complied with
and satisfied. See also 38 C.F.R. § 3.159
(2003). The AMC/RO should (1) inform the
veteran about the information and evidence not
of record that is necessary to substantiate
the claims; (2) inform the veteran about the
information and evidence that VA will seek to
provide; (3) inform the veteran about the
information and evidence the veteran is
expected to provide; and (4) request or tell
the veteran to provide any evidence in his
possession that pertains to the claims. See
38 C.F.R. § 3.159(b)(1).
The AMC/RO must ensure the notification
complies with all applicable Court
precedent, including Quartuccio, supra.,
and Charles v. Principi, 16 Vet. App. 370
(2002).
3. After the development requested above
has been completed to the extent
possible, the AMC/RO should again review
the record. If any benefit sought on
appeal, for which a notice of
disagreement has been filed, remains
denied, the appellant and representative,
if any, should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).This claim
must be afforded expeditious treatment. The law requires
that all claims that are remanded by the Board of Veterans'
Appeals or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See The Veterans
Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117
Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B,
7112).
_________________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).